The revolution picks up

From resistance and denial to increasing innovation, with some setbacks along the way, Roger Smith looks at the journey of how technology is being used to increase access to justice.

The 2017 report, published by the Legal Education Foundation, on Digital Delivery of Legal Services to People on Low Incomes identifies eight conclusions about current developments – chief among them is that we are now into major change that can be traced on a global basis.

First, resistance and denial by legal providers is dying. All those solicitors who argued at legal aid conferences that the future would never happen here are quieter now. The legal profession over the world is recognising that major change will follow from technological developments. In all, five reports were published in the last year by Law Societies and Bar Associations on the impact of aspects of technology – though it may yet fully bite in the sense of re-engineering the legal market.

Firms are, at variable rates, absorbing technology in the management of their practice. However, there has yet to be a decisive move to providing services to the ‘latent legal market’ of those on low incomes willing to pay low sums for legal assistance.

Second, the momentum of legal tech start-ups outside the legal profession is palpable – and very obvious in the United States and here. Some innovators – like RocketLawyer and LegalZoom – focus on direct provision of low cost services, but are still having relatively minor impact on the legal market.

Most are concerned with improving rather than challenging existing providers. The number of innovation hubs is growing but the impact is to be seen. Hackathons are often focusing on access to justice issues, but we need to see more sustained take up of their ideas.

Third, there is a gradual improvement of web-provided information as the first line of service from the not for profit sector to someone in need of legal services, instanced by Citizens Advice in England and Wales and the CLEO-led Steps for Justice programme in Ontario.

There is improvement too in online triage programmes designed to give initial information and help with referral and intake into legally aid schemes, with the prospect of a Microsoft-assisted Legal Services Corporation project in Alaska and Hawaii that may prove a model for the United States.

MyLawBC in British Columbia continues as a exemplary interactive information programme – which shows up the future to the largely non-interactive domestic sites like that of Citizens Advice.

And there is increasing interest in chatbots – though some of the more hyped instances, like the DoNotPay, site to challenge parking fines, are actually pretty crude in their content.

At the apex of this movement, in terms of delivery, is potentially the Australian development of a computer generated face known as Nadia using a wide range of artificial intelligence and the voice of Cate Blanchett to promote a new disability scheme. There is potential for international comparison and collaboration in relation to legal triage sites whose various forms put different weight on referral, online assistance and intake.

Fourth, the failure of the Dutch Rechtwijzer online dispute resolution programme leaves British Columbia’s Civil Resolution Tribunal (which went live in relation to some small claims on 1 June) and its Solution Explorer, as the leading example of an interactive online tribunal seeking to be accessible to users who are representing themselves.

There are bold plans for England and Wales to develop an online small claims court, though there is already doubt about how well this will be done. Performance needs to be rigorously monitored but it is not clear that sufficient attention has been given to user-orientated performance indicators.

Fifth, the provision of legal services to those on low income and the adjudication of their problems is becoming ever more fragmented. Legal aid administrations are being revealed in many jurisdictions as representing only part of the assistance available. That points to a potential leadership gap.

Which institution will lead on public debate and government action on access to justice? In England and Wales, the judge-led Civil Justice Council is stepping into this gap. Elsewhere, particularly in the US, there has been the growth of access to justice committees of all the stakeholders, often chaired by a judge. This can be effective, but no one institution has the power of influence that was once held, for example, by the Legal Services Commission.

Sixth, we need much more rigorous performance standards, monitoring and evaluation, particularly of government funded technology projects. As innovation proceeds, we will get some idea about the fundamental issue of how well people can access digital provision, but we need to keep researching and monitoring this.

We certainly need to remember that we are still a long way from ‘digital only’ and that workable face-to-face provision is still required where we require 100% access to provision such as a court or tribunal.

Seventh, we should look for more innovation in the training of advisers and the education of users via the net.

Finally, we can, as yet, draw very few conclusions on how accessible technology will make legal and adjudication services. We need to keep the fast-moving big picture under evaluation and also pick up on the opportunity for more limited immediate improvements for access to justice that may arise. The need to keep an eye on the international has never been so great.

 

Roger Smith

About Roger Smith

Roger is an expert in domestic and international aspects of legal aid, human rights and access to justice. Roger is a visiting professor of law at London South Bank University and an honorary professor at the University of Kent. He is a solicitor and has been director of the Legal Action Group, JUSTICE and West Hampstead Community Law Centre as well as director of policy and legal education at the Law Society, London, and solicitor to the Child Poverty Action Group. Roger was awarded an OBE in 2009 and received a lifetime achievement award from the Law Society in October 2012

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